40-50500-24-CP221_Sole Source Determinaton Form SIGNED.pdf.PDF

2021 Sole Source Form

STATE OF NEW MEXICO

SOLE SOURCE REQUEST AND DETERMINATION FORM

A sole source determination is not effective until the sole source request for determination has been posted for thirty (30) calendar days without challenge, and subsequently approved in writing by the State Purchasing Agent or, for Professional Services Agreements, the Secretary of the General Services Department. The foregoing requirement is regardless of whether the sole source request for determination has been signed by the Agency and/or the Contractor.

I. Name of Agency: New Mexico Department of Cultural Affairs (DCA) Agency Chief Procurement Officer: Melissa Catanach Telephone Number: (505) 827-7836

Agency Contact for this request:

Matthew O’Reilly, DCA Director of Real Estate or James Cowan, DCA Deputy General Counsel

Telephone Number & Email Address:

Matthew O’Reilly: (505) 699-1037 | matthew.oreilly@dca.nm.gov James Cowan: (505) 946-8018 | james.cowan@dca.nm.gov

II. Name of prospective Contractor: Museum of New Mexico Foundation

SHARE Vendor Number (must be active): 0 0 0 0 0 4 6 3 5 1 Address of prospective Contractor: 1411 Paseo de Peralta, Santa Fe, NM 87501 Contact Name, Telephone Number and Email Address:

Jamie Clements, (505) 982-6366, jamie@museumfoundation.org Amount of prospective contract before tax:

$237,152.00 Annual Rent (contractor pays the state) Estimated tax amount (tax is subject to change): N/A Term of prospective contract: 10-Year Lease (7/1/2024 – 6/30/2035)

Note: For terms longer than one year, Request for Policy Exemption from DFA MUST be included.

III. Agency is required to state purpose/need of purchase and thoroughly list the services (scope of work), construction or items of tangible personal property of the prospective contract (if this is an amendment request to an existing contract, include current contract number issued by

SPD):

The prospective contract will be the renewal of an existing lease agreement between the Museum of New Mexico and the Museum of New Mexico Foundation (the “Museum Foundation”), a 501(c) non-profit organization created in 1962 for the sole purpose of supporting the Museum of New Mexico system. The renewed lease will allow the Museum Foundation to continue its current, decades-long, professional operation of Museum of New Mexico gift shops. The services provided will be the daily operation of the five Museum shops, including all staffing, supply of goods sold, DocuSign Envelope ID: 156EA885-AAEC-4F3C-B9C7-DB0C3F73493E

Museum product development, construction of shop displays, interior furnishings, marketing, insurance, shipping, storage, accounting, and cleaning.

IV. Provide a detailed explanation of the criteria developed and specified by the agency as necessary to perform and/or fulfill the contract and upon which the state agency reviewed available sources. (Do not use “technical jargon;” use plain English. Do not tailor the criteria simply to exclude other contractors if it is not rationally related to the purpose of the contract.)

The primary criteria necessary for the operation of the Museum’s shops is that the operator be licensed to use the Museum of New Mexico’s intellectual property. The Museum Foundation holds the exclusive license to use the Museum’s licensed mark (trademark and trade designation), designs, and name in connection with the manufacture, advertising, merchandising, promotion, and sale or distribution of Museum shop merchandise. The Museum Foundation is therefore the only available source to fulfill the lease contract.

V. Provide a detailed, sufficient explanation of the reasons, qualifications, proprietary rights or unique capabilities of the prospective contractor that makes the prospective contractor the one source capable of providing the required professional service, service, construction or item(s) of tangible personal property. (Please do not state the source is the “best” source or the “least costly” source. Those factors do not justify a “sole source.”)

The Museum Foundation is uniquely qualified to operate the Museum of New Mexico’s museum gift shops as it holds proprietary rights as exclusive licensee of the Museum of New Mexico’s intellectual property via its special agreement with the Museum of New Mexico in accordance with §6-5A-1 NMSA 1978. The Museum Foundation is a 501(c) non-profit organization created in 1962 for the sole purpose of supporting the Museum of New Mexico system. §6-5A-1 NMSA 1978 was enacted by the state legislature to provide for special organizations like the Museum Foundation whose sole purpose is to support a state agency such as the Museum of New Mexico.

The Museum Foundation is the one source available for operation of the Museum’s gift shops contemplated by this procurement because of: (1) its exclusive agreement with the Museum of New Mexico per §6-5A-1 NMSA 1978, (2) its long past history and depth of experience having built out and operated the Museum of New Mexico gift shops for decades, and (3) its unique qualification as holder of the exclusive licensee of the rights to use the Museum of New Mexico’s intellectual property (as described in Section IV above) necessary to operate the various Museum gift shops.

VI. Provide a detailed, sufficient explanation of how the professional service, service, construction, or item(s) of tangible personal property is/are unique and how this uniqueness is substantially related to the intended purpose of the contract.

The services to be provided by the Museum Foundation are unique in that the Museum Foundation is the original creator and constructor of the Museum of New Mexico’s shops and has been their sole operator for decades. Only the Museum Foundation holds the exclusive license to the proprietary rights to the Museum’s intellectual property necessary for Museum product development and operation of the Museum gift shops.

VII. Explain why other similar professional services, services, construction, or item(s) of tangible personal property cannot meet the intended purpose of the contract.

The Museum Foundation holds proprietary rights as exclusive licensee of the Museum of New Mexico’s intellectual property via its agreement with the Museum of New Mexico in accordance with §6-5A-1 NMSA 1978, therefore no other potential contractor can legally provide the required services.

VIII. Provide a narrative description of the agency’s due diligence in determining the basis for the procurement, including procedures used by the agency to conduct a review of available sources such as researching trade publications, industry newsletters and the internet;;

contacting similar service providers; and reviewing the State Purchasing Divisions’ Statewide Price Agreements. Include a list of businesses contacted (do not state that no other businesses were contacted), date of contact, method of contact (telephone, mail, e-mail, other), and documentation demonstrating an explanation of why those businesses could not or would not, under any circumstances, perform the contract; or an explanation of why the agency has determined that no businesses other than the prospective contractor can perform the contract.

No other potential contractor can legally provide the required services because (as stated in paragraph VII above) the Museum Foundation holds proprietary rights as the exclusive licensee of the Museum of New Mexico’s intellectual property therefore no other sources have been reviewed.

Certified by: Date:____________________

Agency Chief Procurement Officer

Agency Approval by: Date: ____________________

Cabinet Secretary/Agency or Entity Head or Designee

APPROVED: Date:____________________

State Purchasing Agent

If this sole source is being submitted by a governmental agency or governmental entity not under the final authority of the State Purchasing Agent, the State Purchasing Agent’s signature is not required. The signature line may be removed from this form or marked as N/A. Hard Copy Documentation for Courtesy Postings do not need to be submitted to SPD for approval.

6/4/2024

6/5/2024